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In
American American(s) may refer to: * American, something of, from, or related to the United States of America, commonly known as the "United States" or "America" ** Americans, citizens and nationals of the United States of America ** American ancestry, pe ...
political discourse, states' rights are
political power In social science and politics, power is the social production of an effect that determines the capacities, actions, beliefs, or conduct of actors. Power does not exclusively refer to the threat or use of force ( coercion) by one actor agains ...
s held for the
state governments A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or ...
rather than the
federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
according to the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, reflecting especially the enumerated powers of Congress and the Tenth Amendment. The enumerated powers that are listed in the Constitution include exclusive federal powers, as well as
concurrent powers Concurrent powers are powers of a federal state A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal gover ...
that are shared with the states, and all of those powers are contrasted with the
reserved powers Reserved powers, residual powers, or residuary powers are the powers that are neither prohibited nor explicitly given by law to any organ of government. Such powers, as well as general power of competence, are given because it is impractical to d ...
—also called states' rights—that only the states possess.


Background

The balance of federal powers and those powers held by the states as defined in the
Supremacy Clause The Supremacy Clause of the Constitution of the United States ( Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thu ...
of the
U.S. Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
was first addressed in the case of '' McCulloch v. Maryland'' (1819). The Court's decision by Chief Justice
John Marshall John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments. After ''McCulloch'', the primary legal issues in this area concerned the scope of Congress' constitutional powers, and whether the states possess certain powers to the exclusion of the federal government, even if the Constitution does not explicitly limit them to the states.Orbach, Callahan & Lindemmen, "Arming States' Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy", ''Arizona Law Review'' (2010)
/ref>


The Supremacy Clause

The
Supremacy Clause The Supremacy Clause of the Constitution of the United States ( Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thu ...
of the U.S. Constitution states: In ''The Federalist'' Papers, ratification proponent
Alexander Hamilton Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Father who served as the first United States secretary of the treasury from 1789 to 1795. Born out of wedlock in Charlest ...
explained the limitations this clause placed on the proposed federal government, describing that acts of the federal government were binding on the states and the people therein ''only if'' the act was in pursuance of constitutionally granted powers, and juxtaposing acts which exceeded those bounds as "void and of no force":


Controversy to 1865

In the period between the
American Revolution The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revolut ...
and the ratification of the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
, the states had united under a much weaker federal government and a much stronger state and local government, pursuant to the
Articles of Confederation The Articles of Confederation and Perpetual Union was an agreement among the 13 Colonies of the United States of America that served as its first frame of government. It was approved after much debate (between July 1776 and November 1777) by ...
. The Articles gave the central government very little, if any, authority to overrule individual state actions. The Constitution subsequently strengthened the central government, authorizing it to exercise powers deemed necessary to exercise its authority, with an ambiguous boundary between the two co-existing levels of government. In the event of any conflict between state and federal law, the Constitution resolved the conflict via the Supremacy Clause of Article VI in favor of the federal government, which declares federal law the "supreme Law of the Land" and provides that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the
Supremacy Clause The Supremacy Clause of the Constitution of the United States ( Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thu ...
itself (see above).


Alien and Sedition Acts

When the Federalists passed the
Alien and Sedition Acts The Alien and Sedition Acts were a set of four laws enacted in 1798 that applied restrictions to immigration and speech in the United States. The Naturalization Act increased the requirements to seek citizenship, the Alien Friends Act allowed th ...
in 1798,
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
and
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
secretly wrote the
Kentucky and Virginia Resolutions The Virginia and Kentucky Resolutions were political statements drafted in 1798 and 1799 in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional. The resolutions argued t ...
, which provide a classic statement in support of states' rights and called on state legislatures to nullify unconstitutional federal laws. (The other states, however, did not follow suit and several rejected the notion that states could nullify federal law.) According to this theory, the federal union is a voluntary association of states, and if the central government goes too far each state has the right to nullify that law. As Jefferson said in the Kentucky Resolutions:
Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party....each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
The Kentucky and Virginia Resolutions, which became part of the
Principles of '98 The Principles of '98 refer to the American political position after 1798 that individual states could both judge the constitutionality of federal laws and decrees and refuse to enforce those that were deemed unconstitutional. That refusal is gene ...
, along with the supporting
Report of 1800 The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January ...
by Madison, became final documents of Jefferson's
Democratic-Republican Party The Democratic-Republican Party, known at the time as the Republican Party and also referred to as the Jeffersonian Republican Party among other names, was an American political party founded by Thomas Jefferson and James Madison in the early ...
. Gutzman argued that Governor
Edmund Randolph Edmund Jennings Randolph (August 10, 1753 September 12, 1813) was a Founding Father of the United States, attorney, and the 7th Governor of Virginia. As a delegate from Virginia, he attended the Constitutional Convention and helped to create ...
designed the protest in the name of moderation. Gutzman argues that in 1798, Madison espoused states' rights to defeat national legislation that he maintained was a threat to republicanism. During 1831–33, the South Carolina Nullifiers quoted Madison in their defense of states' rights. But Madison feared that the growing support for this doctrine would undermine the union and argued that by ratifying the Constitution states had transferred their sovereignty to the federal government. The most vociferous supporters of states' rights, such as
John Randolph of Roanoke John Randolph (June 2, 1773May 24, 1833), commonly known as John Randolph of Roanoke,''Roanoke'' refers to Roanoke Plantation in Charlotte County, Virginia, not to the city of the same name. was an American planter, and a politician from Virg ...
, were called "Old Republicans" into the 1820s and 1830s. Tate (2011) undertook a literary criticism of a major book by
John Taylor of Caroline John Taylor (December 19, 1753August 21, 1824), usually called John Taylor of Caroline, was a politician and writer. He served in the Virginia House of Delegates (1779–81, 1783–85, 1796–1800) and in the United States Senate (1792–94, 1803 ...
, ''New Views of the Constitution of the United States.'' Tate argues it is structured as a forensic historiography modeled on the techniques of 18th-century Whig lawyers. Taylor believed that evidence from American history gave proof of state sovereignty within the union, against the arguments of nationalists such as U.S. Chief Justice John Marshall. Another states' rights dispute occurred over the
War of 1812 The War of 1812 (18 June 1812 – 17 February 1815) was fought by the United States of America and its indigenous allies against the United Kingdom and its allies in British North America, with limited participation by Spain in Florida. It bega ...
. At the
Hartford Convention The Hartford Convention was a series of meetings from December 15, 1814, to January 5, 1815, in Hartford, Connecticut, United States, in which the New England Federalist Party met to discuss their grievances concerning the ongoing War of 1812 and ...
of 1814–15, New England
Federalists The term ''federalist'' describes several political beliefs around the world. It may also refer to the concept of parties, whose members or supporters called themselves ''Federalists''. History Europe federation In Europe, proponents of de ...
voiced opposition to President Madison's war, and discussed
secession Secession is the withdrawal of a group from a larger entity, especially a political entity, but also from any organization, union or military alliance. Some of the most famous and significant secessions have been: the former Soviet republics le ...
from the Union. In the end they stopped short of calls for secession, but when their report appeared at the same time as news of the great American victory at the
Battle of New Orleans The Battle of New Orleans was fought on January 8, 1815 between the British Army under Major General Sir Edward Pakenham and the United States Army under Brevet Major General Andrew Jackson, roughly 5 miles (8 km) southeast of the French ...
, the Federalists were politically ruined.


Nullification Crisis of 1832

One major and continuous strain on the union, from roughly 1820 through the Civil War, was the issue of trade and
tariff A tariff is a tax imposed by the government of a country or by a supranational union on imports or exports of goods. Besides being a source of revenue for the government, import duties can also be a form of regulation of foreign trade and poli ...
s. Heavily dependent upon international trade, the almost entirely
agricultural Agriculture or farming is the practice of cultivating Plant, plants and livestock. Agriculture was the key development in the rise of Sedentism, sedentary human civilization, whereby farming of Domestication, domesticated species created food ...
and
export An export in international trade is a good produced in one country that is sold into another country or a service provided in one country for a national or resident of another country. The seller of such goods or the service provider is an ...
-oriented
South South is one of the cardinal directions or Points of the compass, compass points. The direction is the opposite of north and is perpendicular to both east and west. Etymology The word ''south'' comes from Old English ''sūþ'', from earlier Pro ...
imported most of its manufactured goods from Europe or obtained them from the North. The North, by contrast, had a growing domestic
industrial economy In economics, industrial organization is a field that builds on the theory of the firm by examining the structure of (and, therefore, the boundaries between) firms and markets. Industrial organization adds real-world complications to the perf ...
that viewed foreign trade as competition. Trade barriers, especially protective tariffs, were viewed as harmful to the Southern economy, which depended on exports. In 1828, the
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
passed protective tariffs to benefit trade in the northern states, but that were detrimental to the South. Southerners vocally expressed their tariff opposition in documents such as the ''
South Carolina Exposition and Protest The South Carolina Exposition and Protest, also known as Calhoun's Exposition, was written in December 1828 by John C. Calhoun, then Vice President of the United States under John Quincy Adams and later under Andrew Jackson. Calhoun did not formal ...
'' in 1828, written in response to the "
Tariff of Abominations The Tariff of 1828 was a very high protective tariff that became law in the United States in May 1828. It was a bill designed to not pass Congress because it was seen by free trade supporters as hurting both industry and farming, but surprising ...
". ''Exposition and Protest'' was the work of
South Carolina )''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no) , anthem = " Carolina";" South Carolina On My Mind" , Former = Province of South Carolina , seat = Columbia , LargestCity = Charleston , LargestMetro = ...
senator A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
and former
vice president A vice president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vice president is on t ...
John C. Calhoun, formerly an advocate of protective
tariff A tariff is a tax imposed by the government of a country or by a supranational union on imports or exports of goods. Besides being a source of revenue for the government, import duties can also be a form of regulation of foreign trade and poli ...
s and
internal improvements Internal improvements is the term used historically in the United States for public works from the end of the American Revolution through much of the 19th century, mainly for the creation of a transportation infrastructure: roads, turnpikes, canal ...
at federal expense.
South Carolina )''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no) , anthem = " Carolina";" South Carolina On My Mind" , Former = Province of South Carolina , seat = Columbia , LargestCity = Charleston , LargestMetro = ...
's Nullification Ordinance declared that both the
tariff of 1828 The Tariff of 1828 was a very high protective tariff that became law in the United States in May 1828. It was a bill designed to not pass Congress because it was seen by free trade supporters as hurting both industry and farming, but surprising ...
and the
tariff of 1832 The Tariff of 1832 (22nd Congress, session 1, ch. 227, , enacted July 14, 1832) was a protectionist tariff in the United States. Enacted under Andrew Jackson's presidency, it was largely written by former President John Quincy Adams, who had b ...
were null and void within the state borders of South Carolina. This action initiated the Nullification Crisis. Passed by a state convention on November 24, 1832, it led, on December 10, to President
Andrew Jackson Andrew Jackson (March 15, 1767 – June 8, 1845) was an American lawyer, planter, general, and statesman who served as the seventh president of the United States from 1829 to 1837. Before being elected to the presidency, he gained fame as ...
's proclamation against South Carolina, which sent a naval flotilla and a threat of sending federal troops to enforce the tariffs; Jackson authorized this under color of national authority, claiming in his 183
Proclamation Regarding Nullification
that "our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land" and for greater caution adds, "that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."


Civil War

Over following decades, another central dispute over states' rights moved to the forefront. The issue of
slavery Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
polarized the union, with the Jeffersonian principles often being used by both sides—anti-slavery Northerners, and Southern slaveholders and secessionists—in debates that ultimately led to the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by other names) was a civil war in the United States. It was fought between the Union ("the North") and the Confederacy ("the South"), the latter formed by states th ...
. Supporters of slavery often argued that one of the rights of the states was the protection of slave property wherever it went, a position endorsed by the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
in 1857
Dred Scott decision ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
. In contrast, opponents of slavery argued that the non-slave-states' rights were violated both by that decision and by the
Fugitive Slave Law The fugitive slave laws were laws passed by the United States Congress in 1793 and 1850 to provide for the return of enslaved people who escaped from one state into another state or territory. The idea of the fugitive slave law was derived from ...
of 1850. While historians in the 21st century agree on the centrality of the conflict over slavery, they disagree sharply on which aspects of this conflict (ideological, economic, political, or social) were most important.


Southern arguments

Southern states had a long tradition of using states' rights doctrine since the late eighteenth century. A major Southern argument in the 1850s was that federal law to ban slavery discriminated against states that allowed slavery, making them second-class states. In 1857 the Supreme Court sided with these states' rights supporters, declaring in ''Dred Scott v. Sandford'' that Congress had no authority to regulate slavery in the territories.John Mack Faragher,
Mari Jo Buhle Mari Jo Buhle (born 1943) is an American historian and William J. Kenan Jr. University Professor Emerita at Brown University. Early life and education Buhle was born in 1943 as Mari Jo Kupski. She graduated from North Chicago Community High S ...
, Daniel Czitrom ''Out of Many: A History of the American people'' (2005) p. 376
Jefferson Davis Jefferson F. Davis (June 3, 1808December 6, 1889) was an American politician who served as the president of the Confederate States from 1861 to 1865. He represented Mississippi in the United States Senate and the House of Representatives as a ...
used the following argument in favor of the equal rights of states: Southern states sometimes argued against "states' rights" in the context of
fugitive slave laws The fugitive slave laws were laws passed by the United States Congress in 1793 and 1850 to provide for the return of enslaved people who escaped from one state into another state or territory. The idea of the fugitive slave law was derived from th ...
. For example, Texas challenged some northern states having the right to protect fugitive slaves, with the argument that this would make the institution null once a particular slave had crossed into a free state. The question was pivotal in the case of
Dred Scott v. Sandford ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
.


Northern arguments

The historian James McPherson noted that Southerners were inconsistent on the states' rights issue, and that Northern states tried to protect the rights of their states against the South during the
Gag Rule A gag rule is a rule that limits or forbids the raising, consideration, or discussion of a particular topic, often but not always by members of a legislative or decision-making body. A famous example of gag rules is the series of rules concernin ...
and fugitive slave law controversies. The historian William H. FreehlingWilliam H. Freehling, ''The Road to Disunion: Secessionists Triumphant, 1854–1861'' noted that the South's argument for a state's right to secede was different from Thomas Jefferson's, in that Jefferson based such a right on the unalienable equal rights of man. The South's version of such a right was modified to be consistent with slavery, and with the South's blend of democracy and authoritarianism. Historian Henry Brooks Adams explains that the anti-slavery North took a consistent and principled stand on states' rights against federal encroachment throughout its history, while the Southern states, whenever they saw an opportunity to expand slavery and the reach of their political influence, termed '' Slave Power'', often conveniently forgot the principle of states' rights—and fought in favor of federal centralization: Sinha and Richards both argue that the Southerners only advocated states' rights when they disagreed with a policy. Examples given are a states' right to engage in slavery or to suppress freedom of speech. They argue that it was instead the result of the increasing cognitive dissonance in the minds of Northerners and (some) Southern non-slaveowners between the ideals that the United States was founded upon and identified itself as standing for, as expressed in the Declaration of Independence, the Constitution of the United States, and the Bill of Rights, and the reality that the slave-power represented, as what they describe as an anti-democratic, counter-republican, oligarchic, despotic, authoritarian, if not totalitarian, movement for ownership of human beings as the personal chattels of the slaver. As this cognitive dissonance increased, the people of the Northern states, and the Northern states themselves, became increasingly inclined to resist the encroachments of the Slave Power upon their states' rights and encroachments of the Slave Power by and upon the federal government of the United States. The Slave Power, having failed to maintain its dominance of the federal government through democratic means, sought other means of maintaining its dominance of the federal government, by means of military aggression, by right of force and coercion, and thus, the Civil War occurred.


''Texas v. White''

In ''
Texas v. White ''Texas v. White'', 74 U.S. (7 Wall.) 700 (1869), was a case argued before the United States Supreme Court in 1869. The case involved a claim by the Reconstruction government of Texas that United States bonds owned by Texas since 1850 had been ill ...
'', the Supreme Court ruled that Texas had remained a state ever since it first joined the Union, despite claims to have joined the
Confederate States of America The Confederate States of America (CSA), commonly referred to as the Confederate States or the Confederacy was an unrecognized breakaway republic in the Southern United States that existed from February 8, 1861, to May 9, 1865. The Confeder ...
; the court further held that the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...
did not permit states to unilaterally
secede Secession is the withdrawal of a group from a larger entity, especially a political entity, but also from any organization, union or military alliance. Some of the most famous and significant secessions have been: the former Soviet republics l ...
from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutely
null Null may refer to: Science, technology, and mathematics Computing * Null (SQL) (or NULL), a special marker and keyword in SQL indicating that something has no value * Null character, the zero-valued ASCII character, also designated by , often use ...
" under the constitution.


Since the Civil War

A series of Supreme Court decisions developed the state action constraint on the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
. The state action theory weakened the effect of the Equal Protection Clause against state governments, in that the clause was held not to apply to unequal protection of the laws caused in part by complete lack of state action in specific cases, even if state actions in other instances form an overall pattern of segregation and other discrimination. The
separate but equal Separate but equal was a legal doctrine in United States constitutional law, according to which racial segregation did not necessarily violate the Fourteenth Amendment to the United States Constitution, which nominally guaranteed "equal protec ...
theory further weakened the effect of the Equal Protection Clause against state governments.


In case law

With '' United States v. Cruikshank'' (1876), a case which arose out of the Colfax Massacre of blacks contesting the results of a Reconstruction era election, the Supreme Court held that the Fourteenth Amendment did not apply to the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
or
Second Amendment The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds each ...
to state governments in respect to their own citizens, only to acts of the federal government. In ''
McDonald v. City of Chicago ''McDonald v. City of Chicago'', 561 U.S. 742 (2010), was a landmark decision of the Supreme Court of the United States that found that the right of an individual to "keep and bear arms", as protected under the Second Amendment, is incorporated ...
'' (2010), the Supreme Court held that the Second Amendment right of an individual to "keep and bear arms" is incorporated by the Due Process Clause of the Fourteenth Amendment, and therefore fully applicable to states and local governments. Furthermore, ''
United States v. Harris ''United States v. Harris'', 106 U.S. 629 (1883), or the ''Ku Klux Kase'', was a case in which the US Supreme Court held that it was unconstitutional for the federal government to penalize crimes such as assault and murder in most circumstances. ...
'' (1883) held that the Equal Protection Clause did not apply to an 1883 prison lynching on the basis that the Fourteenth Amendment applied only to state acts, not to individual criminal actions. In the ''
Civil Rights Cases The ''Civil Rights Cases'', 109 U.S. 3 (1883), were a group of five landmark cases in which the Supreme Court of the United States held that the Thirteenth and Fourteenth Amendments did not empower Congress to outlaw racial discrimination by pr ...
'' (1883), the Supreme Court allowed segregation by striking down the Civil Rights Act of 1875, a statute that prohibited racial discrimination in public accommodation. It again held that the Equal Protection Clause applied only to acts done by states, not to those done by private individuals, and as the Civil Rights Act of 1875 applied to private establishments, the Court said, it exceeded congressional enforcement power under Section 5 of the Fourteenth Amendment.


Later progressive era and World War II

By the beginning of the 20th century, greater cooperation began to develop between the state and federal governments and the federal government began to accumulate more power. Early in this period, a federal income tax was imposed, first during the
Civil War A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
as a war measure and then permanently with the Sixteenth Amendment in 1913. Before this, the states played a larger role in government. States' rights were affected by the fundamental alteration of the federal government resulting from the Seventeenth Amendment, depriving state governments of an avenue of control over the federal government via the representation of each state's legislature in the
U.S. Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and powe ...
. This change has been described by legal critics as the loss of a
check and balance Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
on the federal government by the states. Following the
Great Depression The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...
, the
New Deal The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Cons ...
, and then
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
saw further growth in the authority and responsibilities of the federal government. The case of ''
Wickard v. Filburn ''Wickard v. Filburn'', 317 U.S. 111 (1942), is a United States Supreme Court decision that dramatically increased the regulatory power of the federal government. It remains as one of the most important and far-reaching cases concerning the New ...
'' allowed the federal government to enforce the
Agricultural Adjustment Act The Agricultural Adjustment Act (AAA) was a United States federal law of the New Deal era designed to boost agricultural prices by reducing surpluses. The government bought livestock for slaughter and paid farmers subsidies not to plant on par ...
, providing subsidies to farmers for limiting their crop yields, arguing agriculture affected interstate commerce and came under the jurisdiction of the
Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
even when a farmer grew his crops not to be sold, but for his own private use. After World War II, President
Harry Truman Harry S. Truman (May 8, 1884December 26, 1972) was the 33rd president of the United States, serving from 1945 to 1953. A leader of the Democratic Party, he previously served as the 34th vice president from January to April 1945 under Franklin ...
supported a civil rights bill and desegregated the military. The reaction was a split in the
Democratic Party Democratic Party most often refers to: *Democratic Party (United States) Democratic Party and similar terms may also refer to: Active parties Africa *Botswana Democratic Party *Democratic Party of Equatorial Guinea *Gabonese Democratic Party *Demo ...
that led to the formation of the "States' Rights Democratic Party"—better known as the Dixiecrats—led by Strom Thurmond. Thurmond ran as the States' Rights candidate for President in the 1948 election, losing to Truman.


Civil rights movement

During the 1950s and 1960s, the
civil rights movement The civil rights movement was a nonviolent social and political movement and campaign from 1954 to 1968 in the United States to abolish legalized institutional Racial segregation in the United States, racial segregation, Racial discrimination ...
was confronted by the proponents in the Southern states of
racial segregation Racial segregation is the systematic separation of people into race (human classification), racial or other Ethnicity, ethnic groups in daily life. Racial segregation can amount to the international crime of apartheid and a crimes against hum ...
and
Jim Crow law The Jim Crow laws were state and local laws enforcing racial segregation in the Southern United States. Other areas of the United States were affected by formal and informal policies of segregation as well, but many states outside the Sout ...
s who denounced federal interference in these state-level laws as an assault on states' rights. Though ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision by the U.S. Supreme Court, which ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segrega ...
'' (1954) overruled the ''
Plessy v. Ferguson ''Plessy v. Ferguson'', 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision in which the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in qualit ...
'' (1896) decision, the Fourteenth and Fifteenth amendments were largely inactive in the South until the
Civil Rights Act of 1964 The Civil Rights Act of 1964 () is a landmark civil rights and United States labor law, labor law in the United States that outlaws discrimination based on Race (human categorization), race, Person of color, color, religion, sex, and nationa ...
() and the
Voting Rights Act of 1965 The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States that prohibits racial discrimination in voting. It was signed into law by President Lyndon B. Johnson during the height of the civil rights movement ...
. Several states passed
Interposition Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
Resolutions to declare that the Supreme Court's ruling in Brown usurped states' rights. There was also opposition by states' rights advocates to voting rights at
Edmund Pettus Bridge The Edmund Pettus Bridge carries U.S. Route 80 Business (US 80 Bus.) across the Alabama River in Selma, Alabama. Built in 1940, it is named after Edmund Pettus, a former Confederate brigadier general, U.S. senator, and state-lev ...
, which was part of the
Selma to Montgomery marches The Selma to Montgomery marches were three protest marches, held in 1965, along the 54-mile (87 km) highway from Selma, Alabama, to the state capital of Montgomery. The marches were organized by nonviolent activists to demonstrate the ...
, that resulted in the
Voting Rights Act of 1965 The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States that prohibits racial discrimination in voting. It was signed into law by President Lyndon B. Johnson during the height of the civil rights movement ...
.


Contemporary debates

In 1964, the issue of fair housing in California involved the boundary between state laws and federalism. California Proposition 14 overturned the Rumsford Fair Housing Act in California and allowed discrimination in any type of housing sale or rental.
Martin Luther King Jr. Martin Luther King Jr. (born Michael King Jr.; January 15, 1929 – April 4, 1968) was an American Baptist minister and activist, one of the most prominent leaders in the civil rights movement from 1955 until his assassination in 1968 ...
and others saw this as a backlash against civil rights, while actor and future (1967) governor of California Ronald Reagan gained popularity by supporting Proposition 14. The U.S. Supreme Court's ''Reitman v. Mulkey'' decision overturned Proposition 14 in 1967 in favor of the Equal Protection Clause of the Fourteenth Amendment. Conservative historians Thomas E. Woods Jr. and Kevin R. C. Gutzman argue that when politicians come to power they exercise all the power they can get, in the process trampling states' rights. Gutzman argues that the Kentucky and Virginia resolutions of 1798 by Jefferson and Madison were not only responses to immediate threats but were legitimate responses based on the long-standing principles of states' rights and strict adherence to the Constitution. Another concern is the fact that on more than one occasion, the federal government has threatened to Interstate Highway System#The federal role in financing, withhold highway funds from states which did not pass certain articles of legislation. Any state which lost highway funding for any extended period would face financial impoverishment, infrastructure collapse or both. Although the first such action (the enactment of a national speed limit) was directly related to highways and done in the face of a fuel shortage, most subsequent actions have had little or nothing to do with highways and have not been done in the face of any compelling national crisis. An example of this would be the federally mandated drinking age of 21, upheld in ''South Dakota v. Dole''. Critics of such actions feel that the federal government is upsetting the traditional balance between itself and state governments. More recently, the issue of states' rights has come to a head when the Base Realignment and Closure (BRAC) Commission recommended that
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
and the United States Department of Defense, Department of Defense implement sweeping changes to the United States National Guard, National Guard by consolidating some Guard installations and closing others. These recommendations in 2005 drew strong criticism from many states, and several states sued the federal government on the basis that Congress and the Pentagon would be violating states' rights should they force the realignment and closure of Guard bases without the prior approval of the governors from the affected states. After Pennsylvania won a federal lawsuit to block the deactivation of the 111th Fighter Wing of the Pennsylvania Air National Guard, defense and Congressional leaders chose to try to settle the remaining BRAC lawsuits out of court, reaching compromises with the plaintiff states. Current states' rights issues include the death penalty, assisted suicide, same-sex marriage, gun control, and legality of cannabis by U.S. jurisdiction#By state, cannabis, the last of which is in direct violation of federal law. In ''Gonzales v. Raich'', the Supreme Court ruled in favor of the federal government, permitting the Drug Enforcement Administration (DEA) to arrest medical marijuana patients and caregivers. In ''Gonzales v. Oregon'', the Supreme Court ruled the practice of physician-assisted suicide in Oregon is legal. In ''Obergefell v. Hodges'', the Supreme Court ruled that states could not withhold recognition to same-sex marriages. In ''District of Columbia v. Heller'' (2008), the United States Supreme Court ruled that gun ownership is an individual right under the Second Amendment of the United States Constitution, and the District of Columbia could not completely ban gun ownership by law-abiding private citizens. Two years later, the court ruled that the Heller decision applied to states and territories via the Second and Fourteenth Amendment of the United States Constitution, 14th Amendments in ''McDonald v. Chicago'', stating that states, territories and political divisions thereof, could not impose total bans on gun ownership by law-abiding citizens. These concerns have led to a movement sometimes called the Tenth Amendment to the United States Constitution#State sovereignty resolutions and nullification acts, State Sovereignty movement or "10th Amendment Sovereignty Movement".


10th Amendment

The Tenth Amendment of the United States Constitution has been used as a prominent tool of invoking nullification, a common tactic of those that believe in the primacy of States' rights. The Tenth Amendment reads as follows: Notably, the Tenth Amendment has been successfully utilized to nullify restrictive federal laws pertaining to gun rights, immigration, Cannabis (drug), cannabis, and more. Additionally, organizations such as the Tenth Amendment Center seek to utilize the Tenth Amendment to achieve, "Liberty through decentralization". The Tenth Amendment center chiefly focuses on encouraging state representatives to submit bills that nullify federal laws by providing model legislation on their website that provides a rubric for state legislators to follow. In 2009–2010 thirty-eight states introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment; 14 states have passed the resolutions. These non-binding resolutions, often called "state sovereignty resolutions" do not carry the force of law. Instead, they are intended to be a statement to demand that the federal government halt its practices of assuming powers and imposing mandates upon the states for purposes not enumerated by the Constitution.


States' rights and the Rehnquist Court

The Supreme Court's ''Board of Trustees of the University of Alabama v. Garrett, University of Alabama v. Garrett'' (2001) and ''Kimel v. Florida Board of Regents'' (2000) decisions allowed states to use a rational basis review for discrimination against the aged and disabled, arguing that these types of discrimination were rationally related to a legitimate state interest, and that no "razorlike precision" was needed." The Supreme Court's ''United States v. Morrison'' (2000) decision limited the ability of rape victims to sue their attackers in federal court. Chief Justice William H. Rehnquist explained that "States historically have been sovereign" in the area of law enforcement, which in the Court's opinion required narrow interpretations of the Commerce Clause and Fourteenth Amendment. ''Kimel'', ''Garrett'' and ''Morrison'' indicated that the Court's previous decisions in favor of enumerated powers and limits on Congressional power over the states, such as ''United States v. Lopez'' (1995), ''Seminole Tribe v. Florida'' (1996) and ''City of Boerne v. Flores'' (1997) were more than one time flukes. In the past, Congress relied on the
Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
and the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
for passing civil rights bills, including the
Civil Rights Act of 1964 The Civil Rights Act of 1964 () is a landmark civil rights and United States labor law, labor law in the United States that outlaws discrimination based on Race (human categorization), race, Person of color, color, religion, sex, and nationa ...
. ''Lopez'' limited the Commerce Clause to things that directly affect interstate commerce, which excludes issues like gun control laws, hate crimes, and other crimes that affect commerce but are not directly related to commerce. ''Seminole'' reinforced the "sovereign immunity of states" doctrine, which makes it difficult to sue states for many things, especially civil rights violations. The ''Flores'' "congruence and proportionality" requirement prevents Congress from going too far in requiring states to comply with the Equal Protection Clause, which replaced the ratchet theory advanced in ''Katzenbach v. Morgan'' (1966). The ratchet theory held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. An important precedent for ''Morrison'' was ''
United States v. Harris ''United States v. Harris'', 106 U.S. 629 (1883), or the ''Ku Klux Kase'', was a case in which the US Supreme Court held that it was unconstitutional for the federal government to penalize crimes such as assault and murder in most circumstances. ...
'' (1883), which ruled that the Equal Protection Clause did not apply to a prison lynching because the state action doctrine applies Equal Protection only to state action, not private criminal acts. Since the ratchet principle was replaced with the "congruence and proportionality" principle by ''Flores'', it was easier to revive older precedents for preventing Congress from going beyond what Court interpretations would allow. Critics such as Associate Justice of the Supreme Court of the United States, Associate Justice John Paul Stevens accused the Court of judicial activism (i.e., interpreting law to reach a desired conclusion). The tide against federal power in the Rehnquist court was stopped in the case of ''Gonzales v. Raich'', 545 U.S. 1 (2005), in which the court upheld the federal power to prohibit medicinal use of cannabis (drug), cannabis even if states have permitted it. Rehnquist himself was a dissenter in the ''Raich'' case.


States' rights as code word

Since the 1940s, the term "states' rights" has often been considered a loaded language, loaded term or Dog whistle (politics), dog whistle because of its use in opposition to federally-mandated racial Desegregation in the United States, desegregation and, more recently, Same-sex marriage in the United States, same-sex marriage and reproductive rights. During the heyday of the
civil rights movement The civil rights movement was a nonviolent social and political movement and campaign from 1954 to 1968 in the United States to abolish legalized institutional Racial segregation in the United States, racial segregation, Racial discrimination ...
, defenders of
racial segregation Racial segregation is the systematic separation of people into race (human classification), racial or other Ethnicity, ethnic groups in daily life. Racial segregation can amount to the international crime of apartheid and a crimes against hum ...
used the term "states' rights" as a code word (figure of speech), code word in what is now referred to as dog-whistle politics: political messaging that appears to mean one thing to the general population but has an additional, different, or more specific resonance for a targeted subgroup. In 1948 it was the official name of the " Dixiecrat" party led by White supremacy, white supremacist presidential candidate Strom Thurmond. Democratic Governor George Wallace of Alabama, who famously declared in his inaugural address in 1963, "Segregation now! Segregation tomorrow! Segregation forever!" later remarked that he should have said, "States' rights now! States' rights tomorrow! States' rights forever!"Carter, Dan T. ''From George Wallace to Newt Gingrich: Race in the Conservative Counterrevolution, 1963–1994''. p. 1. Wallace, however, claimed that segregation was but one issue symbolic of a larger struggle for states' rights. In that view, which some historians dispute, his replacement of ''segregation'' with ''states' rights'' would be more of a clarification than a euphemism. In 2010, some claimed that Texas Governor Rick Perry's use of the expression "states' rights" was "reminiscent of an earlier era when it was a rallying cry against civil rights." During an interview with ''The Dallas Morning News'', Perry made it clear that he supports the end of segregation, including passage of the Civil Rights Act of 1964, Civil Rights Act. The Texas president of the NAACP, Gary Bledsoe, stated that he understood that Perry was not speaking of "states' rights" in a racial context, but others still claimed to feel offended by the term because of its past misuse.


See also

* * * * ** * * * * * * * (The rights and responsibilities of EU member states.)


Notes


References

* * , which argues at 143–49: "To many, [the notion of states' rights] stands for an anachronistic (and immoral) preference for the race-based denial of essential individual rights....". * Farber, Daniel A., "States' Rights and the Union: Imperium in Imperio, 1776–1876" ''Constitutional Commentary'', Vol. 18, 2001 * Kirk, Russell K., ''Randolph of Roanoke: A Study in Conservative Thought'' (1951) * Gutzman, Kevin R. C. ''James Madison and the Making of America'' (2012) * Gutzman, Kevin R. C. "A troublesome legacy: James Madison and "The principles of '98'", ''Journal of the Early Republic'' (Winter 1995), Vol. 15 Issue 4, pp. 569–89 * Gutzman, Kevin R. C. "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country'", ''Journal of Southern History'' (Aug 2000), Vol. 66 Issue 3, pp 473–96 * McDonald, Forrest, ''States' Rights and the Union: Imperium in Imperio, 1776–1876'' (2002) * Murray, Robert Bruce. ''Legal Cases of the Civil War'' (2003) * Risjord, Norman K., ''The Old Republicans: Southern Conservatism in the Age of Jefferson'' (1965) * Sinha, Manisha, "Revolution or Counterrevolution?: The Political Ideology of Secession in Antebellum South Carolina" ''Civil War History'', Vol. 46, 2000 in JSTOR * * Orbach, Barak Y., et al
"Arming States' Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy"
''Arizona Law Review'', vol. 52, 2010


Further reading

* Sotirios A. Barber, ''The Fallacies of States' Rights.'' Cambridge, MA: Harvard University Press, 2013. *
Jefferson Davis Jefferson F. Davis (June 3, 1808December 6, 1889) was an American politician who served as the president of the Confederate States from 1861 to 1865. He represented Mississippi in the United States Senate and the House of Representatives as a ...
, "s:The Doctrine of State Rights, The Doctrine of State Rights" (1890). ''The North American Review'', Vol. 150, No. 399, pp. 205–219. * Frederick D. Drake, ed. ''States' Rights and American Federalism: A Documentary History'' (1999) * James J. Kilpatrick
''The Sovereign States: Notes of a Citizen of Virginia''
Chicago: Henry Regnery Company, 1957.


External links


Tenth Amendment Center
Federalism and States Rights in the U.S.
States' Rights
in ''Encyclopedia Virginia''
A copy of transcript of Florida's 1957 Interposition Resolution, made available for public use by the State Archives of Florida

Missouri Sovereignty Project
"Institutionalizing" the 10th Amendment into the populace and political fabrics of Missouri. {{Authority control States' rights, Federalism in the United States Legal history of the United States Political history of the United States Conservatism in the United States